Now in its second edition, this textbook presents a critical rethinking of the study of comparative law and legal theory in a globalising world, and proposes an alternative model. It highlights the inadequacies of current Western theoretical approaches in comparative law, international law, legal theory and jurisprudence, especially for studying Asian and African laws, arguing that they are too parochial and eurocentric to meet global challenges. Menski argues for combining modern natural law theories with positivist and socio-legal traditions, building an interactive, triangular concept of legal pluralism. Advocated as the fourth major approach to legal theory, this model is applied in analysing the historical and conceptual development of Hindu law, Muslim law, African laws and Chinese law.
Resource added for the Paralegal program 101101.
Lawyers have to adapt their reasoning to the increasingly global nature of the situations they deal with. Often, rules formulated in a national, international or European environment must all be jointly applied to a given case. This book maps the analysis lawyers require when confronted by the operation of several laws in different contexts, and demonstrates how this enhances legal reasoning.
Harvard Law Professor Cass Sunstein has said that South Africa has ''the most admirable constitution in the history of the world.'' This comparative constitutional law casebook is unique because it allows students and experts in U.S. constitutional law (or other nations) to compare their approach with modern South African constitutionalism. The transformative and progressive South African Constitution adopts the most successful parts of existing parliamentary constitutions, while honoring the nation's African heritage. Further, it incorporates numerous international human rights such as socio-economic and environmental rights. The book's South African focus guarantees readers will grasp the contingency and social context of a foreign constitutional court's decisions, rather than primarily surveying cases from numerous other nations. Yet the introductory chapter also provides background on South Africa, and then exposes readers to key theoretical questions about comparativism. Moreover, that chapter briefly describes seven other constitutional democracies where the courts play important but different roles than in South Africa. These nations provide further context for the strong judicial review exercised by the South African Constitutional Court. Indeed, excerpts from that Court's decisions make up most of the core second chapter. The core chapter also contains questions about the reasoning of each South African case, as well as how that case compares to a single foreign case on the same topic. The book is suitable for law students, as well as other graduate and undergraduate students. In addition, the book is the first condensed version of South African constitutional case law published in the U.S. Thus, it functions as a research collection for experts, as well as a casebook.
The essays in this volume offer global perspectives on crucial contemporary issues such as economic development, the persistence of customary law, offshore" jurisdictions, family law and succession, land tenure, the forging of national constitutions, human rights violations, and the treatment of ethnic minorities. They portray the laws of Asian and African countries as equal manifestations of legal culture in a shrinking world. Rendering Asian and African legal systems and traditions in an accessible form to a non-Asian and non-African audience, this volume will sharpen the sensitivity of academics and practitioners everywhere. A special classroom adoption price is available. Published under the Transnational Publishers imprint."
This book explores the implications of globalisation for the theoretical study of law, justice, and human rights.
Property as a human rights concern is manifested through its incorporation in international instruments and as a subject of the law through property-related cases considered by international human rights organs. Yet, for the most part, the relationship between property and human rights has been discussed in rather superficial terms, lacking a clear substantive connection or common language. That said, the currents of globalisation have witnessed a new era of interrelation between these two areas of the law, including the emergence of international intellectual property law and the recognition of indigenous claims, which, in fundamental ways, speak to an engagement with human rights law. This collection starts the conversation between human rights lawyers and property lawyers and explores analytical approaches to the increasing relationship between property and human rights in a global context. The chapters engage with key theoretical and policy debates and range across three main themes: The re-evaluation of the public/private divide in the law; the tensions between the market and social justice in development and the balance between the rights of individuals and those of communities. The chapters adopt a global, comparative perspective and engage in case studies from countries including India, Philippines, Brazil, the United States, the United Kingdom and includes various regions of Africa and Europe.
The most up-to-date and contextualised offering for comparative law students and scholars, referencing the newest research in the field.
Governance by regulation – rules propounded and enforced by bureaucracies – is taking a growing share of the sum total of governance. Once thought to be an American phenomenon, it is now a central form of state action in every part of the world, including Europe, Latin America, and Asia, and it is at the core of much international lawmaking. In Comparative Law and Regulation, original contributions by leading scholars in the field focus both on the legal dimension of regulation and on how this dimension operates in those places that have turned to regulation to meet their obligations.
A comprehensive and comparative analysis of the legal approach to common areas of substantive law, the law of obligations, commercial and corporate law within the major legal systems of the world. examines the origins of common law, civil law and socialist legal traditions as well as non-Western legal traditions.
The active pursuit of social and labour rights is seen as a crucial response to globalization. These essays, written by leading scholars from the UK, Ireland, France, Germany, Italy, Japan and the USA, question the effectiveness of the rhetoric of rights such as those to decent work and security, equal opportunity, adequate food and housing, and healthcare. The authors examine emerging approaches in several European countries, Japan, and the USA and in codes of practice of multinational companies. Attempts by the International Labour Organization to promote core rights and decent work, and techniques of enforcement at regional level by the EU and NAFTA receive special attention.
This unique work consists of a selection of key papers presented at the first Anglo-Japanese Comparative Law Conference, held at Jesus College, Cambridge in September 1996. The conference was organised under the auspices of the Institute of Advanced Legal Studies, University of London; the University of Tsukuba, Japan; and Murdoch University in Australia. The conference brought together a number of leading business lawyers from around the world, who discussed the impact of globalisation on commercial law. If trhe internalisation of trade and business has produced problems for lawyers, the impact of globalisation, particularly in such areas as the capital markets, has proved to be even more problematic. The implications for all those who operate in the commercial and financial sectors, and for those who advise them, of developments in the nature and character of the markets are increasingly significant. The publication will be of particular interest to academics, those involved in trans-national business, and legal practitioners.
Over the course of the last four decades as China¿s ideological realm has been transformed, it has become significantly more complicated. This is well illustrated in the current discourse concerning China¿s constitutional future. Among Chinese intellectuals the liberal constitutionalism paradigm is widely accepted. However, more recently, this perspective has been challenged by mainland New Confucians and Sinicized Marxists alike. The former advocate a constitutionalism that is based upon and loyal to the Confucian tradition; while the latter has sought to theorize the current Chinese constitutional order and reclaim its legitimacy. This book presents a discussion of these three approaches, analyzing their respective strengths and weaknesses, and looking to the likely outcome. The study provides a clear picture of the current ideological debates in China, while developing a platform for the three schools and their respective constituencies to engage in dialogue, pluralize the conceptions of constitutionalism in academia, and shed light on the political path of China in the 21st Century. The consequences of this Chinese contribution to the global constitutionalism debate are significant. Notions of the meaning of democratic organization, of the nature of the division of authority between administrative and political organs, of the nature and role of political citizenship, of the construction of rights are all implicated. It is argued that China¿s constitutional system, when fully theorized and embedded within the global discourse might serve, as the German Basic Law did in its time, as a model for states seeking an alternative approach to the legitimate construction of state, political structures and institutions.
Unequal Protection of the Law: the Rights of Citizens and Non-Citizens in Comparative Perspective, explores the disparate allocation of legal rights of persons from a comparative, global perspective. In particular, the chapters herein canvass some of the timely, hot-topic issues relative to the legal rights of persons vis-à-vis the rights of citizens, migrants, refugees, and immigrants. In conducting a comparative analysis, the chapters elucidate how various migrant, refugee, and immigrant populations are disproportionately disadvantaged under national laws as compared to citizens within the same jurisdictions. The chapters also explicate how the disparate allocation of rights under national laws raises a number of human rights law violations. Towards this endeavor, the chapters discuss which particular international laws, treaties, declarations, and/or conventions are implicated as a result of the disparate and unequal treatment of migrants, refugees, and immigrants under law. This book seeks to contribute important analyses and discussions on the current state of affairs relative to the rights of persons within the context of the rights of citizens vis-à-vis non-citizens (migrants, refugees and immigrants). In shedding light on how various migrant, immigrant and refugee populations are disproportionately disadvantaged under national laws as compared to citizens within the same jurisdictions, the chapters will raise general awareness of the differences in legal standing of people before the law. Students and scholars alike will gain exposure to timely international issues of civil rights and human rights - which can inform and guide the creation of norms relative to the rights all persons should enjoy as well as foment a greater awareness of the issue of legal rights within civil society. This book seeks to contribute scholarly discourse to the extant literature on citizenship and migration - and particularly - the interface of these two concepts. Lastly, this books aims to serve as a resource for students, scholars, practitioners, and even those with a casual interest, who seek a deeper understanding of some of the prevailing issues relative to the (dis)equal protection of laws throughout the globe. Collectively, the chapters in this book weave together a mosaic of case-studies and narratives that poignantly illustrate the disparate allocation of legal rights of persons from a comparative, global perspective. The chapters also make a strong case for why we should care about the rights of persons; about why we should care about human rights. Richard T. Middleton, IV, editor and contributor, is an Associate Professor of Political Science at the University of Missouri-St. Louis. Middleton is also an adjunct professor of law at St. Louis University School of Law where he teaches courses on immigration law and citizenship, social justice and human rights. He is also a licensed attorney who has practiced immigration law for many years.
The existence and urgency of global climate change is a matter of scientific consensus. Yet the global politics of climate change have been anything but consensual. In this context, a wave of global climate activism has emerged in the last decade in response to the perceived failure of the political negotiations. This book provides a unique comparative study of environmental movements in USA, Japan, Denmark and Sweden, analyzing their interaction with the international climate institutions of the United Nations, with national governments, and with currents in the global climate movement. It documents how and why the movement evolved between the Copenhagen Summit of 2009 and the Paris Summit of 2015, altering its strategies and tactics while attracting new actors to the issue area. Further, it demonstrates how the development of global environmental networks has increased contact between environmental movements in the Global North and those from the Global South, resulting in the establishment of ‘climate justice’ as a political cause and unifying frame for global climate activism.
'Intellectual property and private international law' was one of the subjects discussed at the 18th International Congress of Comparative Law held in Washington (July 2010). This volume contains the General Report and 20 National Reports covering Canada, US, Japan, Korea, India and a number of European countries (Austria, France, Germany, UK, Spain etc). The General Report was prepared on the basis of National Reports. The national reporters not only describe the existing legal framework, but also provide answers for up to 12 hypothetical cases concerning international jurisdiction, choice-of-law and recognition and enforcement of foreign judgments in multi-state IP disputes. Based on their answers the main differences between legal systems as well as the shortcomings of the cross-border enforcement of IP rights are outlined in the General Report. The Reports in this volume analyse relevant court decisions as well as recent legislative proposals (such as the ALI, CLIP, Transparency, Waseda and Korean Principles). This book is therefore a significant contribution to the existing debate in the field and will be a valuable source of reference in shaping future developments in the cross-border enforcement of IP rights in a global context.
This insightful book considers the phenomenon of the transformation of enforcement in European economic law while adopting a distinct global perspective. The editors identify and respond to the need for reflection on transformation processes in the area of enforcement by bringing together the leading international and European scholars in a variety of disciplines to share and compare experiences and learning in different areas of law. Rooted in a wide and regulatory understanding of enforcement, this book showcases the transformation of enforcement with reference to both European economic law (especially transnational commercial law, competition law, intellectual property law, consumer law) and to the current context of significant global economic challenges. Comparative perspectives facilitate the formation of a holistic perspective on enforcement that reaches beyond distinct theoretical accounts, political agendas, regulatory systems, institutional patterns, particular remedies, industry sectors, and stakeholder perspectives. As the first comprehensive and comparative analysis of the enforcement of European economic law that reaches beyond closely confined areas of law, it constitutes a crucial contribution to the theoretical and policy questions of how to design a coherent European enforcement architecture in accordance with essential principles and objectives of the EU economic order This unique study will have broad appeal. By exploring enforcement transformations from a legal and a cross-disciplinary perspective, it will be essential reading for scholars, practitioners and policymakers from different disciplines.
International Transactions in Goods: Global Sales in Comparative Context explains the complex transactional structures common in international sales, from both an international and a domestic legal perspective. In a straightforward, accessible style, this course book sets out typical business models and commercial practices, including sample legal and commercial documents, and outlining the laws that govern them. Closely attuned to practice, this course book covers transactions on a commercial scale and gives full treatment not only to legal topics, but also payment, security, carriage, and insurance, addressing both traditional topics such as letters of credit, bills of lading, and the Incoterms, as well as modern practices like electronic funds transfers, and waybills. Martin Davies and David V. Snyder emphasize the strategic questions that lawyers and businesses face when negotiating and documenting deals, and when litigating transactions that have gone awry. As many of the strategies revolve around choice of governing law, the book treats not only international law, particularly the UN Convention on the International Sales of Goods (CISG), but also exemplary domestic laws from both common law and civil law jurisdictions, including the US Uniform Commercial Code (UCC), English law, French law, and German law. This book is designed to be accessible to students and readers of all levels, whether from common law or civil law backgrounds, by providing basic explanations of fundamental theories and attitudes in international law, common law, civil law, and international business. The format includes the methods of different traditions, with extensive text familiar to civil law readers, case excerpts familiar to common law readers, and a large array of problems-based on real cases and transactions-to demonstrate the concepts and to practice and evaluate what has been learned. The book also tackles current ethical and moral issues in international transactions, particularly the relation of law and contracting to environmental protection, workers' rights, and similar matters.
In the past few years, constitutional courts have been presented with new challenges. The world financial crisis, the new wave of terrorism, mass migration and other country-specific problems have had wide-ranging effects on the old and embedded constitutional standards and judicial constructions. This book examines how, if at all, these unprecedented social, economic and political problems have affected constitutional review in Europe. As the courts’ response must conform with EU law and in some cases international law, analysis extends to the related jurisprudence of the European Court of Justice and the European Court of Human Rights. The collection adopts a common analytical structure to examine how the relevant challenges have been addressed in ten country specific case studies. Alongside these, constitutional experts frame the research within the theoretical understanding of the constitutional difficulties of the day in Europe. Finally, a comparative chapter examines the effects of multilevel constitutionalism and identifies general European trends. This book will be essential reading for academics and researchers working in the areas of constitutional law, comparative law and jurisprudence.
This comprehensive Handbook offers a thoughtful survey of contract theories, issues and cases in order to reassess the field's present vision of contract law. It engages a critical search for the fault lines which cross traditions of thought and globalized landscapes. Comparative Contract Law is built around four main groups of insights, including: the genealogies of contractual theoretical thinking; the contentious relationship between private governance and normative regulations; the competing styles used to stage contract law; and the concurring opinions expressed within the domain of other disciplines, such as literature and political theory. The chapters in the book tease out the tensions between a global context and local frameworks as well as the movable thresholds between canonical expressions and heterodox constructions.